SC asks can NAB laws, if abolished by Parliament, be challenged

ISLAMABAD: The Supreme Court has asked if parliament abolishes the NAB laws, can it be challenged in the Supreme Court.

A three-member bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah, on Thursday heard the petition of former prime minister Imran Khan, challenging the amendments made by the coalition government to the National Accountability Ordinance (NAO) 1999.

Continuing his arguments, Makhdom Ali Khan, counsel for the federal government, submitted that parliament was not required to establish that it had the power to legislate, but the court was to explain why legislation like the NAB amendments could not be made.

The counsel argued that only a law that was prohibited by parliament could be declared null and void. He argued that legislation aimed at limiting the judiciary’s powers could be overturned.

Justice Syed Mansoor Ali Shah asked the learned counsel whether abolishing the death sentence would be a constitutional step and whether the legal heirs of the deceased could challenge it in the Supreme Court.

Makhdom Ali Khan replied that for the honour of morality and humanity, the law could remain intact.

The judge also inquired if parliament abolished the NAB laws, it could be challenged in the Supreme Court.

Makhdom Ali Khan responded that, in addition to making legislation, parliament has the authority to reverse its decisions and there was no restriction on its ability to repeal a law.

Chief Justice Umer Ata Bandial questioned if the fundamental rights of the people would not be affected after abolishing the Pakistan Penal Code.

“In this case, there are some fundamental rights involved, and the offences relate not only to private but also public property,” the chief justice said.

“Let the crime be; we will identify if there is a violation of basic fundamental rights, as punishment is something subsequent and we are not concerned with it,” the CJP remarked.

Makhdom Ali Khan submitted that there were some 220 offences committed in the UK and the US, adding that stealing beyond a certain amount is capital punishment. However, he said that after abolishing the death penalty law, it was applied to the pending cases as well.

He also claimed that no one in the UK was sentenced to death for any offence and that no one could be hanged for involvement in heinous crimes. He submitted that the UK avoided making an extradition treaty with countries awarding death sentences.

“Once you have a capital punishment, you cannot have an extradition treaty,” the counsel submitted.

Justice Ijazul Ahsen, another member of the bench, said that the stance of the other side (the petitioner) was that accountability was an essential concept of Islamic law, where the death penalty was there in Shariah, while the Constitution recognised the preamble and articles relating to basic fundamental rights. “If legislation could be made against Islamic principles,” Justice Ahsen asked.

The counsel replied that the concept of Diyat and Qasas was also there in Islamic law, adding that the legal heirs of a deceased person can pardon the accused under Diyat. In this respect, the learned counsel cited various books written by well-known Islamic scholars, including Hashim Kamali, who was the Chairman of the Islamic Ideology Council, and added that one of his books was on Islamic Jurisprudence.

Justice Mansoor Ali Shah asked the learned counsel whether the court could examine the laws in the light of Shariah if something was not found.

“The court cannot examine the NAB amendments on touchstone Islamic principles and the forum concerned is the Federal Shariat Court,” Makhdom Ali Khan replied, adding that what happens in parliament is Ijma, and the principle of Ijma and Ijtihad is exercised by it.

The chief justice said that the principles of Amanat and Khayanat were mentioned in the Quran, adding that rigid words have been used in the Quran for Khaine. “Whatever be the punishment, an offence is an offence, and the punishment is something subsequent, and we are not concerned with it,” the CJP remarked.

Makdhom Ali Khan argued that applying the NAB amendments with retroactive effect was nothing new, as accountability laws had always been applied in the past, and that when the NAB law was established, it had been applied since the reign of military dictator Gen Ziaul Haq in 1985.

Chief Justice Umer Ata Bandial said that much importance had been given to public trust in the Constitution.

The counsel submitted that no country talked about a breach of public trust, adding that not a single country around the world considers corruption legal.

“But the question arises about the volume of the sentence if an offence is committed,” the counsel added.

Meanwhile, the court adjourned the hearing until February 7 as Makhdom Ali Khan would not be available for some engagements.